Vulnerable People June 2013 Update

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A lot of practitioners acting as Deputies and Appointee’s as well as Mental Health Advocates etc need a more holistic view of the legal area surrounding their clients; we shall now be including selected Benefits and Housing case law as well in our updates.

For a more “complete” updates in the said area’s we would recommend from which whom some of our updates are sourced from:

Housing: Garden Court Chambers  and Nearly Legal
Benefits: Rightsnet
Mental Health Law: MHL and 39 Essex

Also keep an eye on our guides which now include template letters.

P.S. We have added a “add to kindle” button on our posts to help read it on the go, as well making it available via PDF here for later consumption. If you have any other request please let us know.

Don’t forget to Tweet / Share the update using the links below

Mental Capacity. 3

 Law Society Practice Note – Financial Abuse. 3

 Are LPA’s open to abuse vs Deputyships?. 4

 CPR Rule 21 and Compromise / Consent Agreements. 4

 Welfare Benefits. 4

 Short Term Benefit Advance. 4

 Discretionary Housing Benefit Update. 4

 JH v Secretary of State for Work and Pensions. 5

 MM & DM v Secretary of State for Work & Pensions. 5

 Editors Note. 6

 LL v Secretary of State for Work and Pensions (IS)8

 Point to note MJ Fordman’s note on Quistclose Trusts. 9

 CH v Secretary of State for Work and Pensions (ESA)10

 JT v Secretary of State for Work and Pensions (DLA)11

 CK and JK v Secretary of State for Work and Pensions (CA, DLA) [2013] UKUT 0218 (AAC)12

 PL v Secretary of State for Work and Pensions (JSA)15

 HS v Secretary of State for Work and Pensions (ESA)16

 EW v SSWP (ESA)17

 CP v Secretary of State for Work and Pensions (DLA)18

 Housing Law.. 19

 The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2013  19

 R (Afework) v Camden LBC [2013] EWHC (Admin) 1637. 19

 Reading BC v Holt [2013] EWCA Civ 641. 20

 Complaint against Birmingham City Council 12001546. 20

 Johnson v Solihull MBC, June 6, 2013. 20

 Superstrike Ltd v Rodrigues [2013] EWCA Civ 669. 21

 Complaint against Daventry DC 12 003 658. 24

 Complaint against Southwark LBC 12 011 599. 24

 Brusse and Garabito v Jahani Ltd [2013] EUECJ C-488/11. 24

 New Guides and Updates on Legal Notebook. 25

 Assessing Vulnerability. 25

 Template: EU Citizen advised by DWP to apply for IS/ESA.. 26

 Assessing Medical Opinion. 26

 Priority Need Case Law + Statute. 26

 When the National Assistance Act should be used. 26

 Employment Support Allowance Tribunal Appeal26

 Set Aside Tribunal decision due to client being late. 26

 Tribunal Postponement Request due to a pre-booked holiday. 27

 Housing Benefit – Pre-action letter27

 Housing Benefit Refusal for No NI number27

Mental Capacity

Law Society Practice Note – Financial Abuse

The Law Society have produced a new Practice Note for all solicitors who advise clients that are or may be at risk of financial abuse which is defined as

“Financial or material abuse, including theft, fraud, exploitation, pressure in connection with wills, property or inheritance or financial transactions, or the misuse or misappropriation of property, possessions or benefits. (DH/Home Office, 2000”

The Practice Note goes on to give examples of people who would be “vulnerable”  and key characteristics of people who are normally targets of financial abuse, examples of abuse, examples of what to look out for:

  • signatures on cheques, or other documents that do not resemble the vulnerable person’s signature or are signed when the person is unable to write
  • any sudden changes in bank accounts, including unexplained withdrawals of large sums of money by a person accompanying the vulnerable person
  • the sudden inclusion of additional names on an vulnerable person’s bank accounts or benefits payments – often these individuals are unrelated to the older person
  • abrupt changes to or creation of wills that leave most or all of the assets to a new friend or only one relative
  • the sudden appearance of previously uninvolved relatives claiming their rights to a vulnerable person’s affairs and possessions
  • unexplained sudden transfers of assets to a family member or someone outside the family
  • numerous small sums of cash being ‘given’ to, or money regularly disappearing after visits from a relative or neighbour
  • numerous unpaid bills when someone else is supposed to be paying bills for the vulnerable person
  • unusual concern by someone that an excessive amount of money is being expended on the care of the vulnerable person
  • lack of amenities such as TV, personal grooming items, appropriate clothing items, that the vulnerable person should be able to afford
  • the unexplained disappearance of funds or valuables such as jewellery
  • deliberate isolation of a vulnerable person from their friends and family, resulting in the carer alone having total control.

It further goes on to dictate how to assess capacity (as capacity varies at times and type of decision) what to do in different scenarios and a brief overview of LPA’s. Deputyships and Appointeeship, the role of Local Authority.       

Are LPA’s open to abuse vs Deputyships?

A critical review looking at recent case law in the area and statistics published by OPG.

CPR Rule 21 and Compromise / Consent Agreements

Civil Procedure Rule 21.10 provides that where a claim is made by or on behalf of a party who lacks capacity to conduct the proceedings (a child or protected party), no settlement of that claim shall be valid without the approval of the court.

 Masood Ahmed gives a quick overview of the caselaw in the area with Bean J holding in Dunhill v Burgin [2012] EWCH 3163 (QB):

‘In my judgment it is clear, as Ward and Arden LJJ held in Bailey v Warren, that CPR part 21 applies to invalidate a consent judgment involving a protected party reached without the appointment of a litigation friend and the approval of the court, even where the individual’s lack of capacity was unknown to anyone acting for either party at the time of the compromise.’

 

 Welfare Benefits

Short Term Benefit Advance

 With Crisis Loan gone and Budgeting loan limited, what provisions are available? SBTA came into force 1st April 2013 to replace with Short-term Advances replacing Interim Payments and Social Fund Crisis Loan alignment payments for all benefits from April 2013 and Budgeting Advances will replacing Social Fund Budgeting Loans for eligible Universal Credit claimants from April 2013.

 Budgeting Loans however continue to be available to those claiming legacy benefits (JSA ESA IS etc) until all such claims have either been closed or migrated to Universal Credit.

 You can see DWP guidance here and a small guide on the topic by Welfare Rights Forum here

Discretionary Housing Benefit Update

 New regulations came into force on 10 June 2013 to all UC recipient to access DHP.

 The Regulation is here and explanatory memo is here

JH v Secretary of State for Work and Pensions

[2013] UKUT 0206 (AAC)

 http://www.osscsc.gov.uk/judgmentfiles/j3797/CDLA%202390%202012-00.doc

 The Claimant has applied for DLA and his solicitor had sent in a 7 page submissions backed by medical evidence for lower rate mobility and middle rate care. However neither attended the hearing so the tribunal heard the matter on the papers present.

E A L Bano concluded:

Hearings on the papers in cases of this kind very often present tribunals with difficult challenges.  However, in this case there was uncontested medical evidence which would have allowed the tribunal to make reasoned findings of fact on which to base an assessment of the nature and extent of the claimant’s care needs.  The tribunal failed to make the findings of fact which were needed to decide the extent of the claimant’s need for supervision and attention, and gave reasons for dismissing the appeal which had no logical bearing on the issues which they had to decide.

 

MM & DM v Secretary of State for Work & Pensions[2013] UKUT 0259 (AAC)

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3791

The Applicants, with the support of the Charity Interveners, argue that the process of assessment for entitlement to ESA discriminates against claimants with mental health problems (MHPs) by reason of the failure of the Secretary of State to obtain further medical evidence (FME) relating to them in breach of his duty to make “reasonable adjustments” pursuant to his duty to do so under s. 20(3) the Equality Act 2010.

Justice Charles concluded that:

(1)     The establishment of the duty to make reasonable adjustments pursuant to s. 20(3) is based on a generic test.

 (2)      On that basis, the first limb of the statutory test set by s. 20(3) of the Equality Act 2010 is satisfied, because the present practice of the SSWP relating to FME, has the result that in a significant number of claims by claimants with MHPs, those claimants, and thus that class of claimants, are placed at a substantial disadvantage (and so, as defined, one that is more than minor or trivial) and/or suffer an unreasonably adverse experience.

 (3)     At this stage, it would not be reasonable for the SSWP to investigate or implement the introduction of a change in practice to one where FME was sought in respect of every claim because, at this stage, this would not be a reasonable step to take to avoid that substantial disadvantage.

 (4)     We do not have sufficient evidence to enable us to determine, on a properly informed basis and with appropriate particularity, the steps that it would be reasonable for the SSWP to take to avoid that substantial disadvantage, and thus to make an order that defines the steps to  be taken by the SSWP under the second limb of the test set by s. 20(3) of the Equality Act 2010.

 (5)     We should direct the SSWP to take defined steps, within a defined period, to investigate and assess the implementation of significant changes in the practice relating to obtaining FME in respect of claimants with MHPs to provide the evidence referred to in (4).

 (6)     Those steps are in line with a recommendation concerning the obtaining of further documentary evidence made by Professor Harrington.

 Justice Charles on Remedy

 Remedy

 “We agreed that we would hear the parties on this after this judgment had been circulated in draft for the identification of typing corrections and obvious errors.”

Editors Note

I would also point out the FOI request below which dictates who should be conducting the review based on conditions.

https://www.whatdotheyknow.com/request/115581/response/285811/attach/7/ESA%20filework.pdf

Suitable only for doctors:
Stroke
Head injury with neuro sequelae
Brain haemorrhage
Sub Arachnoid Haemorrhage
Brain tumour
Acoustic Neuroma
Multiple Sclerosis
Motor Neurone Disease
Parkinson’s disease
TIAs
Bulbar Palsy
Myasthenia Gravis
Muscular Dystrophy
Guillain-Barre Syndrome
Amyotrophic lateral sclerosis
Syringomyelia
Neurofibromatosis
Spina bifida
Polio
Fits (secondary to brain tumour)
Learning difficulties (with neurological physical problems)
Nystagmus
Myelitis
Bells Palsy
Trigeminal Neuralgia
Paraplegia
Quadriplegia
Huntington’s Chorea
Huntington’s Disease.

 Suitable for Neuro trained nurses:
Prolapsed intervertebral disc
Lumbar nerve root compression
Sciatica
Slipped disc
Lumbar spondylosis
Lumbar spondylolisthesis
Lumbar spondylolysis
Cauda equina syndrome
Spinal stenosis
Peripheral neuropathy
Neuropathy
Drop foot
Meralgia paraesthetica
Cervical spondylosis
Cervical nerve root compression
Cervicalgia
Nerve entrapment syndrome
Carpal tunnel syndrome
Trapped nerve
Paraesthesia
Tingling
Numbness
Brachial plexus injury
Polyneuropathy
Dizziness
Vertigo
Essential Tremor
VWF
Alzheimer’s
Dementia

LL v Secretary of State for Work and Pensions (IS)

 [2013] UKUT 0208 (AAC)
Case No  CIS/2494/2012
http://www.osscsc.gov.uk/judgmentfiles/j3800/CIS%202494%202012-00.doc

 Decision:  The appeal is allowed.

The decision of the First-tier Tribunal (the tribunal) sitting at Liverpool on 22 March 2012 under reference SC068/11/05794 involved the making of an error on a point of law and I set it aside. Acting under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007,

 I remake the tribunal’s decision as follows:

 (1) The claimant’s appeal against the decision (or purported decision) of 21 March 2011 (“the recoverability decision”) is allowed.

 (2) The income support claimed to have been overpaid to the claimant is not recoverable under the recoverability decision, because there was not the valid supersession decision in place which the statute requires.

(3) This decision does not prejudice the Secretary of State’s ability to take further or alternative steps to recover such income support, nor the claimant’s rights to appeal should such steps be taken.

 Conclusion

 1.            It follows that in this case, as in SSWP v AD (IS), there was no legally effective decision capable of satisfying section 71(5A) of the 1992 Act. That means this particular exercise in trying to recover the money in question from the claimant has failed. This does not prevent the Secretary of State from beginning again and carrying out a fresh overpayment process correctly. If the Secretary of State does decide to do that, and takes a decision or decisions which are adverse to the claimant, the claimant will have fresh appeal rights. In these circumstances, I do not need to deal with the other grounds of appeal, or deal with any further or other matter. If the question of recovery of overpayment is to be pursued, on which I make no comment, then no doubt the claimant and those who are assisting her will with to reflect on what documents and evidence they can provide in order to support what they are saying happened and why it happened. Materials can be provided to the Secretary of State. Materials can also be provided to the tribunal, if there is any further appeal.

Point to note MJ Fordman’s note on Quistclose Trusts

 2.            , as to the question of a “Quistclose trust” raised by Judge Wikeley (page 82 §6), the Secretary of State makes a number of points (page 94), including as to the importance of documents recording the purpose of the arrangement (as to which, see page 88 §14). I have not had to deal with these. As it seems to me, a key relevant reference point for the Quistclose trust argument would be the question whether the evidence of the claimant and other family members is accepted as to the purpose of the bank account. I sympathise with the claimant’s sister who has written (page 97): “I am afraid, reading through the Respondent’s observations, that I am not at all familiar with the ‘Quistclose’ trust or what that means”. As I have explained, it has not been necessary to this decision for me to analyse the Quistclose argument, and I have not done so. However, I hope I can help the claimant and those who are assisting her, by saying a little more about what the argument would be, as I have understood it.

 (1)         Money placed into another person’s hands normally becomes that person’s property to apply as that person chooses. That means they are the beneficial owner of it. But the position can be different. The money may be provided for a specific purpose, so that the person who receives it is not free to apply it for another purpose. In that situation, the money may be held on trust. That means the person who provided the money can have a right in ‘equity’ to insist that the money is used only for the stated purpose, not some other purpose. The person who received the money would not become the beneficial owner of the money, at least while the purpose is still capable of being carried out. I have based this description on §§68-69 of the case of Twinsectra Ltd v Yardley[2002] UKHL 12 [2002] 2 AC 164, referred to in the papers in this case (page 87 §12).

  (2)         So, the argument would be as follows, in this case. Although family members transferred money into an account in the claimant’s name, that money was for the specific purpose of being available for the claimant if something happened to her mother. While the claimant’s mother is alive and well, the purpose (or keeping money available in case something happens to the mother) is still capable of being carried out. The money is held on trust, and the claimant did not become the beneficial owner of the money, even though it was in her name. The Secretary of State cannot rely on the money as having been hers.

  (3)         Logically, if that argument is right, it would also affect the lawfulness of an entitlement decision (supersession).

  (4)         An example of a Quistclose trust argument being rejected is the case in the papers at page 83. An example of a Quistclose trust argument being accepted is the case at page 89.

CH v Secretary of State for Work and Pensions (ESA)

 [2013] UKUT 0207 (AAC)
C
ase No  CE/2771/2012
http://www.osscsc.gov.uk/judgmentfiles/j3799/CE%202771%202012-00.doc

 The central question in this case is whether the claimant meets any of the statutory criteria regarding limited capability for work-related activity.

 One such criteria involves the position where, by reason of the claimant’s physical or mental condition, this descriptor (descriptor 12) applies to her:

 “12. Coping with change.       Cannot cope with any change, due to cognitive impairment or mental disorder, to the extent that day to day life cannot be managed.”

  The relevant statutory provisions are regulation 34(1) of, and Schedule 3 paragraph 12 to, the Employment and Support Allowance Regulations 2008.

 The tribunal found that because there was an occasion when the claimant had coped with a change, descriptor 12 could not apply to her. That reasoning involved these steps. (1) The tribunal focused on the word “any” (underlined above) in descriptor 12. (2) The tribunal examined the example which the claimant had put forward (page 19), concerning an occasion on 13 July 2011. (3) The tribunal found that on that occasion the claimant, albeit with difficulty, “did cope with the change”. (4) The tribunal ruled that this was fatal to her claim. The key passage in the tribunal’s reasons is §11 (page 53).

Regulation 34(2) of the 2008 Regulations provides that:

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.”

 MJ Fordham agreed with both parties that this was an error of law. Analysis is as follows.

(5)         The regulations should be read, if possible, as a coherent whole and it is necessary to see if there is an interpretation which avoids a conflict between regulation 34(2) and descriptor 12, reconciling the two. In my judgment there is such an interpretation, and therefore it is not necessary for one to give way to the other.

 (6)         The combined effect of these provisions is that a claimant can say: ‘the majority of the time, I cannot cope with any change’.

  (7)         The word “any” brings in changes of differing degree of significance. An individual will fail if, the majority of the time: (a) they cannot cope with significant change but (b) they can cope with less significant change. That is the consequence of the word “any” in descriptor 12. An individual will succeed if, the majority of the time they cannot cope with “any” change, even a less significant change. It is not of itself fatal that the claimant can sometimes cope with a change.

 Further to the point re an example given by the claimant, it was in the claimant mind a good example and not necessarily the best example. The Tribunal should have kept the above regulation in mind when considering the same and checked for any patterns to indicate it happens “majority” of the time.

JT v Secretary of State for Work and Pensions (DLA)

[2013] UKUT 0221 (AAC)
Appeal No: CDLA/3447/2012

The tribunal erred in law when deciding the claimants DLA Mobility as it focussed on aspect of the client’s trip to an airport in Greece while not considering how the walk itself was. Namely distance, pace, serve discomfort etc. SM Wright summarised as below:

Airports – Greek and otherwise  

1.                  Reliance on a one-off trip abroad and the related “walking” at the airports on either side of the flight abroad as good evidence on the virtually inability to walk test under section 73(1) (a) of the Social Security Contributions and Benefits Act 1992 and regulation 12(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 is notoriously prone to difficulties.

 2.                  To start with, even if walking is done in an airport (as the tribunal found here), due allowance has to be made for the fact that this is walking indoors whereas the statutory test looks at walking outdoors, and consideration still has to be given to how far the person walked in the airport, how long that took him, whether he had any halts, and, crucially, how much of that walking was done without severe discomfort (CDLA/3165/1998 at paragraph 12); and appropriate findings of fact have to be made (CDLA/331/2006 at paragraph 3). No such analysis of the appellant’s walking in the Greek airport was carried out by the tribunal here, nor did it asses how far he walked (contrary to the appellant’s case) at Manchester airport.  As the Secretary of State’s representative helpfully points out, there are 15 international airports in Greece, but the tribunal here took no steps to identify which one the appellant flew to or how far he had to walk in that airport in order to get to passport control (or indeed what he did after he had passed passport control). These investigative failures and the resultant failure to make appropriate findings of fact mean the tribunal erred in law.

 3.                  In addition, there was evidence that the appellant had pain on walking (page 55) and some evidence of difficulties with pain management (bottom of record of proceedings on page 69 – Naproxen upset appellant and taken off Ibuprofen). In these circumstances, I consider, first, that the tribunal ought to have investigated with the appellant why he was taken off Ibuprofen and when this occurred and said why, despite this evidence, it accepted the GP’s evidence that he was (only) on Ibuprofen.  Second, the tribunal needed to explain why the pain which it accepted the appellant was in when walking did not amount to severe discomfort. 

 4.                  Moreover, tribunals need to be astute to examine the reasons why a walk through an airport may have been undertaken despite the pain it may have brought on (e.g. to get to a wedding or visit a sick relative – see CDLA/2108/2010), and bear in mind that it is in most, if not all, cases walking that it is not normally undertaken. This is important because if, as here, the walking at the airport is a key aspect of the evidence relied on by the tribunal, it needs to be able to explain why this one-off walking is demonstrative of the claimant’s overall walking ability.  In addition, the airport walking was done here in July 2012, which is a date and a circumstance obtaining after the date of the decision under appeal (19.12.11), and so ought to have been ignored as relevant evidence under section 12(8)(b) of the Social Security Act 1998 unless an adequate explanation was given about why such walking was relevant to the appellant’s ability to walk in December 2011: CDLA/3351/2007               

 5.                  None of this was done adequately by the tribunal in its assessment of the evidence here, or at least its reasoning does not show that it did this, and it therefore erred in law.

 6.                  If I may say so, rather than focusing on the airport walking it would have been more useful, in my judgment, for the tribunal to have taken evidence from the appellant about the walking he normally did in or around December 2011 (e.g. to his GP or to the coffee shop at the supermarket) and based its decision on such walking that he did then which could be done without severe discomfort.    

CK and JK v Secretary of State for Work and Pensions (CA, DLA) [2013] UKUT 0218 (AAC)

 CG/2052/2011; CDLA/2053/2011 2028/2011
http://www.osscsc.gov.uk/judgmentfiles/j3802/CG%202052%202011-00.doc

This was a selection four appeals were selected as lead cases from a group of appeals, with a view to determining the major questions of law common to all the cases in the group.

 The Tribunal found:

 The decisions removing entitlement to the care component of DLA and to CA in 2001 could not be revised on the application in 2008 because they did not arise from official error (the error only having been shown by the subsequent decision of the ECJ in Commission v Parliament and not by Jauch) and in any event the First-tier Tribunal of 18 May 2011 would have had no power to substitute a revision for the supersession with effect from the date of the application to reinstate benefit even if there had been an official error. Those rules are not inconsistent with the principles that the remedies and procedures provided by domestic law for the enforcement of EU rights are not less favourable than those provided for the enforcement of EU right (equivalence) and that the rules do not make the enforcement of EU rights virtually impossible or excessively difficult (effectiveness).

 Questions Raised by Tribunal:

 1.      Official error and the exportability of the care component of DLA, AA and CA

                                                               i.      Is the ECJ a “court” under the definition in regulation 1(3)?

 As per Commission v Parliament decided EU ruling had a directly authoritative precedential effect under section 3(1) of the European Communities Act 1972. That ruling is capable of being a decision of the court within the meaning of the exception to the definition of official error in regulation 1(3) of the Decisions and Appeals Regulations.

                                                              ii.      Did Jauch show that there was an error of law in 2001?

   In my view, Jauch put a question mark against the proper  categorisation of DLA, AA and CA, but no more than that.

                                                            iii.      The effect of post-Jauch case-law

 a.       The effect of post-Jauch legislative and administrative developments in the EU

  2.      Official error and the effective dates of the supersession decisions in 2001

 
Concluded that there was no official error in relation to the effective date in the decision of 3 July 2001 in Mr K’s case.

 3.      Could the tribunal of 18 May 2011 have carried out a revision if there had beenan official error?

 4.      Does EU law require the disapplication of the British rules on official error and on the time limits for appealing in revision cases?

 […] the Tribunal of Commissioners in R(P) 1/09 and R(P) 2/09 did not even think it worth considering whether the existence of the exception to the definition of official error was in any way inconsistent with the principle. Allowing the effect of an authoritative ruling of the ECJ, like that of a similar ruling of the British courts or tribunals, not to alter the outcome of decisions made prior to the date of the ruling, cannot be seen as making the enforcement of EU rights virtually impossible or excessively difficult. It does not prevent the revision of decisions made after the crucial ruling. And even if the right conclusion in paragraphs 77 to 80 below were that the principle of equivalence does not require regulation 7(6) of the Decisions and Appeals Regulations to be extended to cover rulings of the ECJ, the rules on supersession allow supersession for error of law to take effect prospectively from the date of an application for supersession following the ruling. The combined effect of those rules cannot, bearing in mind the interests of legal certainty, be regarded as making the enforcement of EU rights excessively difficult. (our emphasis-ED)

 5.      Does EU law require the disapplication of the British rules on the effective date of supersessions on the ground of error of law?

 J Mesher stated:

 [Any] ruling of the ECJ, and in particular the ruling in Commission v Parliament, could not be a “relevant determination” for the purposes of triggering the operation of regulation 7(6). However, a serious question arises whether the provision as so interpreted is incompatible with the principle of equivalence in cases where EU rights are in issue. Regulation 7(6) has the result that, for the ordinary case where a decision of the Secretary of State is revealed to have been in error of law by a decision of the Upper Tribunal or a superior United Kingdom court (a relevant determination), the Secretary of State’s decision has to be superseded on the ground of error of law and the superseding decision has to have effect no later than the date of the relevant determination. Thus if, in the present case, the decision in Commission v Parliament had not been made by the ECJ but by the Court of Appeal in England and Wales on an appeal arising out of a Secretary of State’s decision, the decisions in Mr and Mrs K’s cases would have had to be superseded (not being capable of revision) with effect from 18 October 2007. However, because of the peculiarity of the way in which section 27(1) of the 1998 Act is drafted, rulings of the ECJ are excluded. Therefore, it could be argued that the procedural conditions governing the enforcement of EU rights when the error of law is revealed by a ruling of the ECJ are less favourable than those relating to errors of law revealed by United Kingdom courts and tribunals, so that the limits to regulation 7(6) have to be disapplied to the extent necessary to remove the less favourable treatment.

 He further concluded:

 […] the definition of relevant determination in domestic law is limited to appeal decisions arising directly in the appellate chain established under the 1998 Act and now the Tribunals, Courts and Enforcement Act 2007. There would not then be any breach of the principle of equivalence in excluding rulings of the ECJ, which do not form a direct part of that appellate chain, especially not the annulment proceedings in Commission v Parliament which were analogous to judicial review proceedings.

PL v Secretary of State for Work and Pensions (JSA)

 [2013] UKUT 0227 (AAC)  Case No.  CJSA/2428/2012
http://www.osscsc.gov.uk/judgmentfiles/j3807/CJSA%202428%202012-00.doc

Background summarised by CG Ward:

 The claimant, a man aged 58, with a lengthy working record, had, following a period claiming jobseeker’s allowance, been referred to the programme known as “Flexible New Deal” (or “FND”).  He was referred in March 2010 and, though he obtained temporary work in the summer of 2010, it did not last for long enough for the requirement to participate in Flexible New Deal to be set aside.  He was re‑referred to Flexible New Deal, to a company called Ingeus UK Ltd (“Ingeus”). The claimant attended a meeting with Ingeus on 20 September 2010 but was unimpressed by the assistance Ingeus could offer.  In consequence he failed to attend a number of appointments with them.  This resulted in a letter sent on the headed notepaper of Ingeus UK Ltd (which I note refers to it as being “part of the Department for Work and Pensions”, though I do not see in what sense this can be so).  The letter is signed by a Ms Kate Porter, whose job title is not stated.  It set out the details of the claimant’s next Flexible New Deal appointment, which was to be on 14 December 2010, and said that:

             “Please note that if you do not attend and do not have a good reason you   could lose your jobseeker’s allowance and national insurance credits.”

 The claimant did not attend the scheduled appointment.  He was sent a standard enquiry form asking why he had not done so and he replied drawing attention to the reservations he had about Ingeus and their perceived ineffectiveness in assisting him with his job search.  In particular he asserted that “all they came up with was a literate course and an interview course.”  He reiterated that “I have qualifications and I am 56 years old and know how to conduct myself at an interview.”  A sanction of two weeks was applied to his jobseeker’s allowance, from 7 January to 20 January 2011.

A complaint by the claimant ended up with the district manager of Jobcentre Plus for the county in which he lives, a Mr Sheppard.  He replied by letter of 28 January 2011 indicating that he had spoken to Ingeus who had said that at the 20 September meeting they had explained the help they could offer the claimant “such as exploring other job goals and making speculative applications”.  He enclosed a copy of leaflet FND1 “which explains the Flexible New Deal responsibilities”.

The claimant appealed to the tribunal.  There was a mix‑up over his attendance.  The hearing went ahead anyway and dismissed the appeal and an application for set aside was refused.  The tribunal noted (among other things) the letter of 30 November 2010 from Ingeus and the warning it contained.  It somewhat inconsistently noted both that he “failed to attend the appointment and gave no reasons for not doing so” but also that in his reply to the enquiry from the Jobcentre about why he had not attended his reply had set out the views about the New Deal Scheme and made comments about the way he had been treated by the Jobcentre.

Regulation 75 of the Jobseekers Allowance Regulations 1996/2007 (“the 1996 Regulations”) and FND falls in to 75(1)(a)(v). CG Ward in allowing the appeal questioned:

whether there was any evidence that a notice envisaged by regulation 73(2A)(b) had ever been given or sent to the claimant and specifically whether Ms Porter, writing on behalf of Ingeus UK Ltd, not Jobcentre Plus or the DWP, was an “employment officer” for this purpose (under Section 19 of the Jobseekers Act 1995 (10)).

 

HS v Secretary of State for Work and Pensions (ESA)
[2013] UKUT 0220 (AAC)
Case No  CE/3804/2012

 The claimant, a woman in her sixties with a substantial range of health conditions which I need not set out, had appealed against a decision dated 19 August 2011 that she scored 0 points under the work capability assessment.

 Her appeal had first been listed for 10 April 2012.  On that occasion the claimant’s son and daughter appeared to explain that their mother could not do so as she had been admitted to hospital with a lung condition.  The tribunal adjourned to allow the claimant to attend. 

 The case was relisted on 2 July 2012. The claimant was not present and the tribunal received no request for an adjournment.  Having waited until 20 minutes after the listed start time, it decided to go ahead and dismissed the appeal.

 Shortly afterwards an application for set aside  was made by the welfare benefits officer attached to the claimant’s housing provider on the ground that the claimant had not received notification that the appeal was to be heard and so did not attend.

 On 17 July 2012 a decision was taken refusing set aside.

 CG Ward allowed the appeal considering:

 SO Abraham v LB Ealing [2012] UKUT 437 (AAC):

             “We must go back to rule 37 again.  The critical features of the rule are       (i) that one of the four conditions in (2) is made out; (ii) it is in the         interests of justice to set aside the decision and (iii) that the rule is             discretionary, not mandatory.” 

 As well as  paragraph 32 of DG v Secretary of State for Work and Pensions (DLA) [2011] UKUT 14 (AAC):

             “32.     I repeat that a tribunal may well be entitled to take a robust             approach.  However, if a robust approach is taken to a party’s non-     attendance at a hearing, then, depending on the circumstances, it may         be appropriate to be more discerning and flexible in considering a        subsequent application for a set aside.  As the Employment Appeal   Tribunal has put it, “it would appear to be a necessary concomitant of         the more stringent attitude [to non-attendance] … that there be the less             stringent attitude on a review if a party who has not attended comes           forward with a genuine and full explanation and shows that the original     hearing was not one which from which he deliberately absented        himself” (see Cooke v Glenrose Fish Co [2004] ICR 1188 at paragraph        21(1)).

 He concluded I also bear in mind that the appeal is not trivial or obviously hopeless and has not been overtaken by events. And allowed the appeal.

 EW v SSWP (ESA)

2013 UKUT 228 AAC
CE 3431 2012
 

Question was in regards to Post 28.3.11. WCA activity 1: mobilising unaided, Whether use of wheelchair or other aid reasonable.

The appellant appealed on two grounds. First, she could not believe that this decision was possible given her physical disabilities and mental anxiety. No account, she contended, had been taken of her mental health problems at all. Second, she complained about the medical examination. In preparation for the appeal she obtained and sent in a letter from her general practitioner. That confirmed problems of mobility and pain. It recorded a diagnosis of fibromyalgia and mood related issues arising from her pain syndrome.

Re standing and Sitting David Willaims backed MC v Secretary of State for Work and Pensions, [2012] UKUT 324 (AC) in that the test is a cumulative one and not separate for standing and sitting.

Re mobilising: He highlighted:

 The decision of Commissioner Stockman is MG v Department for Social Development [2013] NICom 359.

 Although both parties to the case supported the decision of Judge Gamble as adopting the correct approach to the descriptor, Commissioner Stockman identifies a problem with that approach on the ground that in his view it departs from a purely functional analysis. He comments (at paragraph [40]):

 “it seems to me that the reasonableness or otherwise of using an aid should be judged purely in the context of its potential use to enhance functional ability  … the   basic question should be whether would be reasonable to use an otherwise          appropriate aid in order to enhance function.”

 As well as

 Gamble in M v Secretary of State for Work and Pensions [2012] UKUT 376 (AAC).  Judge Gamble emphasised in this decision that the matter of reasonableness was “one requiring a broad exercise of their independent judgment to all the factors that are relevant in each individual case. Those factors should not be restricted to a consideration of a claimant’s physical ability to use a manual wheelchair.”

 The tribunal had failed to consider if it was reasonable to use an aid (wheelchair) if not being used why not and the effect of the same on the client mobilising with or without the aid if applicable. Therefore the decision was set-aside

 

CP v Secretary of State for Work and Pensions (DLA)

 [2013] UKUT 0230 (AAC)
Case No. CDLA/373/2012

http://www.osscsc.gov.uk/judgmentfiles/j3809/CDLA%200373%202012-00.doc

 

Housing Law

The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2013

These Regulations amend the provisions of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (“the Eligibility Regulations”) which determine which persons from abroad, other than persons subject to immigration control, are ineligible for an allocation of housing accommodation under Part 6 of the Housing Act 1996 or for housing assistance under Part 7 of that Act. For these purposes, ‘person subject to immigration control’ has the meaning given in section 13(2) of the Asylum and Immigration Act 1996 (c.49).

The SI can be seen here and a new handbook by ECHR can be seen here

R (Afework) v Camden LBC [2013] EWHC (Admin) 1637

http://www.bailii.org/ew/cases/EWHC/Admin/2013/1637.rtf

 From 1990 to 2000 the council had been providing accommodation and support for the claimant who had mental health difficulties. In 2000 he was subject of a vicious racist attack and suffered very severe injuries including brain damage. The council provided him with specialist accommodation and support under the National Assistance Act 1948 which carried a right to levy charges. The claimant’s case was that the duty to accommodate was in fact owed under the Mental Health Act 1993 section 117 for which no charge could be levied. The High Court refused permission to apply for judicial review. No duty under the 1983 Act had arisen prior to 2000 and since then the need for care and accommodation had been rightly addressed under the 1948 Act.

Reading BC v Holt [2013] EWCA Civ 641

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/641.rtf

 The council granted a tenancy of a three bedroom house to Mr Holt in 1949 for his family to occupy. The defendant was born in 1953 and was the last family member living in the house. She had succeeded to the secure tenancy and had lived in the home all her life.

 The council sought possession for under-occupation (Ground 16).

 The judge granted the order on condition that it would not take effect until a formal offer of alternative accommodation with specific features had been made.

 The Court of Appeal dismissed an appeal and stated the judge had not erred in her consideration of the reasonableness of making an order. Nor had it been necessary for the landlord to offer a specific property before making the claim or before the hearing. The judge was entitled to make a conditional order of the type she had made.

Complaint against Birmingham City Council 12001546

 http://www.lgo.org.uk/GetAsset.aspx?id=fAAxADcAOQA1AHwAfABUAHIAdQBlAHwAfAAwAHwA0

 A mother and her four children had to leave their home due to incidents of harassment and intimidation. The council placed them in unsuitable bed-and-breakfast accommodation without making any sustained effort to find an alternative. As a result, the family had to live together in the same room for 17 weeks. The council delayed in reaching a decision on its second review of their homelessness application (following a county court appeal). The council also failed to take into account personal and financial circumstances when deciding whether the amount it charged for removal and storage of their possessions was reasonable. The Ombudsman recommended an apology, payment of £1980 (for the stress and anxiety caused by living in unsuitable accommodation and the delay in dealing with a homeless review decision) and a further £2000 in recognition of the injustice caused to the children for living in B&B for a prolonged period. It should also reassess its charges for the removal and storage of possessions.

Johnson v Solihull MBC, June 6, 2013

 Mr Johnson was 37 years old. He was a heroin addict, suffered from depression and had spent many periods in custody since he was 13 or 14 years old. For several years he had not had his own home, and would either stay with friends or family or sleep rough. He subsequently applied to Solihull for assistance under Part 7, Housing Act 1996.

 He was found not in priority need, this was upheld on a review with the reviewing officer, comparing Mr Johnson to the “ordinary homeless person”, referred to a report which contained statistics demonstrating that a number of homeless people suffered from mental illnesses and drug problems.

The county court dismissed Mr Johnson’s appeal and Mr Johnson appealed to the Court of Appeal. He contended that:

(1) the reviewing officer had wrongly applied the test of vulnerability, as she had used as the comparator a homeless person affected by drug use rather than a homeless person who did not have such issues;

(2) the composite assessment approach required of the reviewing officer when she considered “other special reason” under s.189(1)(c) meant that she should consider the individual factors and how they related to each other; (

3) the judge had been wrong to limit to long-term prisoners the application of the Homelessness (Priority Need for Accommodation) England Order 2002 art.5(3), which provided that a person who was vulnerable as a result of having served a custodial sentence had a priority housing need.

Decision

The Court of Appeal dismissed the appeal and stated

 1)      The reviewing officer had been entitled to, when comparing Mr Johnson’s circumstances to the ordinary homeless person, to determine that the ordinary homeless person was likely to suffer from mental illness and / or drug problems and it could not be said that the reviewing officer had failed to consider all of Mr Johnson’s circumstances together.

 2)      The reviewing officer was not wrong to find that Mr Johnson was not vulnerable by way of his imprisonment; he had not become institutionalised and the other evidence showed that his released had not led to him being vulnerable.

 

Superstrike Ltd v Rodrigues [2013] EWCA Civ 669

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/669.rtf

 The facts

Rodrigues was the assured shorthold tenant of Superstrike. The tenancy began in January 2007 with a term of 12 months. A deposit of £606.66 (a month’s rent) was paid in January 2007. In January 2008, the tenancy became a statutory periodic tenancy. In June 2011, S served a s.21 Notice and then brought possession proceedings. In May 2012, the possession claim was dismissed, though for reasons not at issue in this appeal. On appeal to a Circuit Judge, a possession order was granted, on the basis that the deposit had been taken before April 2007.

Ground of Appeal

On the statutory periodic tenancy arising in January 2008, a deposit was received in respect of a tenancy, which fell under the requirements of s.213 HA 2004, thus failure to protect meant s.215 applied and the s.21 Notice was invalid.

There for the court had to decide:

1)      Did the statutory periodic tenancy constitute a new tenancy?

 2)      Had the deposit been ‘received’ by the landlord in respect of that tenancy in the meaning of section 213.

 Decision

Point 1

It is clear from the 1988 Act that what happens at the end of the fixed period tenancy is the creation of a new and distinct statutory tenancy, rather than, for example, the continuation of the tenant’s previous status. I do not see that there can be any doubt as to that. It was so held in relation to a comparable provision in the 1988 Act in N & D (London) Ltd v Gadson (1991) 24 HLR 64.

Point 2, whether the deposit had been ‘received’ in January 2008 at the start of the new statutory periodic tenancy. The landlord argued that:

section 213 only applies when the deposit is “physically received” after 6 April 2007. By physical receipt he meant payment by cash, cheque, bank transfer or in some other comparable way, such as occurred in the present case in January 2007. He supported this argument by a submission that, if the appellant’s contention were correct, many private landlords would have been caught, and caught unawares, by a need to comply with section 213 on the expiry, after the commencement date, of a fixed term assured shorthold tenancy created before that date, if the tenant remains in possession, no new tenancy agreement being entered into, and the deposit, which had previously been paid and was still held, simply staying where it was with nothing said about it. He pointed to the absence of any transitional provision in the Act or in the commencement order. If so, he argued, the landlord would have to go to the otherwise unnecessary and pointless trouble and expense of arranging for the deposit to be held in accordance with an authorised scheme, simply in order to be able to recover possession of the premises by serving a section 21 notice.

R argued that

even though no money changed hands and no book entries were made at that stage, nevertheless the landlord had to be treated as having received the amount of the deposit, referable to the new tenancy, on 8 January 2008. Otherwise the deposit would only have been held as security for obligations and liabilities under the original fixed period tenancy, which would make no sense, at least for the landlord. If the landlord is, therefore, treated as holding the deposit in relation to the new tenancy, it must be treated as having received it for that purpose.

As s.212(8) referred to money in the form of cash or otherwise, it was clear that it didn’t have to be physical currency, payment by cheque or bank transfer could amount to payment and receipt. This provision should be construed broadly. Payment had been held to cover situations other than cash, cheque or bank transfer in White v Elmdene Estates Ltd [1960] 1 QB 1, [1960] AC 528, where an obligation to give a £500 discount on a sale associated with a tenancy letting had been found to be payment of a premium. This had been approved in Hanoman v Southwark London Borough Council (No 2) [2009] UKHL 29.

The Court of Appeal agreed with R.

The 2004 Act has to be construed in the light of the provisions of the 1988 Act as regards assured shorthold tenancies, including section 5. Once the new statutory periodic tenancy had come into being after the commencement date, a tenant’s deposit being already held, it would be necessary to consider whether and if so how the 2004 Act applied. As I have said already, it must have been the landlord’s position, by then, that it held the sum of £606.66 as a deposit as security for the performance of the tenant’s obligations, or for the discharge of any liability of the tenant, arising under or in connection with the new tenancy. That could only be the correct legal position if that sum of money was to be treated as having been paid pursuant to the tenant’s obligation under the periodic tenancy to provide a deposit. That obligation only arose on the expiry of the fixed term tenancy, so the payment at the beginning of that fixed term cannot have given rise to the position which obtained once the fixed term had expired. […]

The tenant should be treated as having paid the amount of the deposit to the landlord in respect of the new tenancy, by way of set-off against the landlord’s obligation to account to the tenant for the deposit in respect of the previous tenancy, given that the landlord did not seek payment out of the prior deposit for the consequences of any prior breach of the tenancy agreement.

It follows that, on my analysis, the tenant did pay, and the landlord did receive, the sum of £606.66 by way of a deposit in respect of the new periodic tenancy in January 2008, and so the obligations under section 213 applied to the deposit so received. As is common ground, they were not performed. Section 215(1) therefore applied so that the landlord could not validly give notice under section 21 of the 1988 Act. The notice purportedly given on 22 June 2011 was thus ineffective and the grounds for possession were not made out.

As there had been no claim by the tenant, as yet, for the return of the deposit and a penalty under s.214, the only order was for the dismissal of the possession claim.

Complaint against Daventry DC 12 003 658

 A housing association tenant’s disabilities were such that he needed to have one of the ground floor rooms of the home changed into use as a bedroom.

 He applied to the council for a mandatory disabled facilities grant. The council estimated the cost of the works as exceeding the limit of £30,000 for a mandatory DFG.

 Instead of providing a discretionary grant for the balance, it pursued a fruitless alternative process causing unnecessary delay.

 The Local Government Ombudsman recommended an apology, £5000 compensation and completion of the works within five months. For the investigation report, click here.

 

Complaint against Southwark LBC 12 011 599

A council tenant needed to leave her home urgently with her family because her son (a former gang member) was in danger of violent assault.

The council provided her with temporary accommodation under its personal protection policy. She remained there for 18 months.

The Local Government Ombudsman found extensive maladministration. The council had failed to take a homelessness application. It had breached its own policy on risk assessment cases and had failed to make a decision. It had failed to help the family apply for alternative council housing. There had been a failure to keep in touch with the family or keep them informed.

The Ombudsman made a raft of recommendations including £2000 compensation. For the investigation report, click here.

 

Brusse and Garabito v Jahani Ltd [2013] EUECJ C-488/11

The company granted the claimants a joint tenancy of residential accommodation. It used the standard terms drawn up by a professional association. The terms provided for penalties and interest to be payable in the event of rent arrears.

The tenants defaulted and the company sued for the rent, the interest and the late payment penalties. The tenants took the point that the provisions for interest and penalties were ‘unfair’ because they exceeded any loss that might actually be suffered by the company.

The European Court of Justice held that the EU Directive on unfair contractual terms applied to agreements between professional landlords and residential tenants. Moreover, a national court is required of its own motion to consider whether any disputed tenancy terms are fair and to annul any unfair terms. The court cannot simply reduce the amount of interest payable or the penalty due under the unfair terms. They must be ruled invalid. For the judgment, click here.

 It is interesting to note however that this is inline with OFT guidance (Guidance on unfair terms in tenancy agreements)which states:

 “… unfair terms are legally unenforceable against consumers, it is in landlords’ interests as well as tenants’ that terms should be fair. “

 Will be interesting to see if now the same leeway is given by the Residential Tribunal in regards to terms in leases.

 

New Guides and Updates on Legal Notebook

Assessing Vulnerability

www.legalnotebook.co.uk/housing/assessing-vulnerabilty-a-detailed-look-at-hotak/

This recent Housing case gives guidance on how to assess vulnerability under the National Assistance Act where they have support even without accommodation.

Template: EU Citizen advised by DWP to apply for IS/ESA

 http://www.legalnotebook.co.uk/guides/eu-rights-in-uk/advised-to-apply-for-wrong-benefit/

 This Template and Guide cover the circumstances if an EU citizen was advised incorrectly to apply for IS/ESA and they fail on Right to Reside test.

Assessing Medical Opinion

 http://www.legalnotebook.co.uk/guides/homelessness/assessing-medical-opinions/

 Part of our Homelessness Guides, detailing how councils Primary Medical Officers opinion should be assessed if doing an appeal of a Homelessness application.

 

Priority Need Case Law + Statute

http://www.legalnotebook.co.uk/guides/homelessness/priority-need-case-law/
http://www.legalnotebook.co.uk/guides/homelessness/statutory-scheme-for-vulnerability/

What is considered priority need for Homelessness, a Statutory and case law summary.

When the National Assistance Act should be used

http://www.legalnotebook.co.uk/guides/homelessness/when-national-assitance-act-1948-should-be-used/

A guide detailing the circumstance when the National Assistance Act can be used.

Employment Support Allowance Tribunal Appeal

 http://www.legalnotebook.co.uk/guides/benefit-tribunal-appeals/employment-and-support-allowance-tribunal-appeal/

 A guide and template submissions for an ESA tribunal case.

Set Aside Tribunal decision due to client being late

http://www.legalnotebook.co.uk/guides/benefit-tribunal-appeals/set-aside-tribunal-decision-due-to-apellant-being-late/

 A template letter and guide on when a Tribunal decision can be set aside when the client is late for the hearing.

Tribunal Postponement Request due to a pre-booked holiday

 http://www.legalnotebook.co.uk/guides/benefit-tribunal-appeals/tribunal-postponement-request-due-to-pre-booked-holiday

 Sometimes a client has a hearing that clashes with a pre-booked holiday. This guide contains a template that can be used in such a situation.

Housing Benefit – Pre-action letter

 http://www.legalnotebook.co.uk/guides/housing-benefit/housing-benefit-new-application-pre-action-letter

 This guide details condition when a pre-action can be sent for a new application if you already have an appeal ongoing and a change of circumstance.

Housing Benefit Refusal for No NI number

 http://www.legalnotebook.co.uk/guides/housing-benefit/refusal-of-housing-benefit-for-no-national-insurance-number/

 This guide includes a template letter to use if your Housing Benefit has been refused on the grounds you or your partner does not have a NI number.

 

Vulnerable People June 2013 Update by
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About Arfan Bhatti

AB has been working in Benefits, Housing and Estate Planning (Wills, Lasting Power of Attorney's, Deputyships, Trusts) for about four years and is experienced in Tribunal Appeals, Judicial Reviews, Mental Capacity Issues and Estate Planning.

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